Bruette v. US Secretary of the Interior et al

Filing 17

DECISION AND ORDER signed by Chief Judge William C Griesbach on 9/20/2017 GRANTING 12 Motion to Dismiss. This action is DISMISSED and the Clerk of Court is directed to enter judgment accordingly. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FELIX J. BRUETTE, JR.,
Plaintiff,
v.

Case No. 17-C-286

SECRETARY OF INTERIOR and
STOCKBRIDGE-MUNSEE COMMUNITY,
Defendants.

DECISION AND ORDER GRANTING MOTION TO DISMISS

Plaintiff Felix J. Bruette, Jr. brought this pro se civil action against the Secretary of the
United States Department of Interior (“DOI”)1 and the Stockbridge-Munsee Community
(“Community”), a federally recognized Indian tribe. Bruette brought this action asking the court to
vindicate his right to be recognized as a historical tribe and prevent the Community from acting as
a historical tribe. Bruette claims that Congress did not empower the Secretary with the authority
to convey or allocate the rights or property of a historical tribe. ECF No. 1 at 2. Bruette also claims
that, as the direct descendant of a Stockbridge-Munsee Tribe member who was part of the Treaty
of 1856 between the United States and the Tribe,2 he is entitled to a “direct inalienable right to hold
1

2

Although unnamed in the complaint, the current DOI Secretary is Ryan Zinke.

Because this decision discusses the history and federal recognition of an Indian tribe, it is
important to take a moment to distinguish the use of the terms “tribe,” “Tribe,” and “Community”
throughout this decision. The term “tribe” is used when referring to a general Indian tribe. The term
“Tribe” is used when referring to the descendants of the Stockbridge-Munsee Indians without regard
to their federal recognition status. The term “Community” is used when referring to the
Stockbridge-Munsee Community, a federally recognized Indian tribe, as recognized by the DOI since
1937.

the same together with all the rights privileges, immunities, and appurtenance of whatso ever nature.”
Id. at 3.
This, however, is not Bruette’s first attempt to seek federal vindication of these rights. In
2014, Bruette filed a similar pro se civil action asking the court to recognize him, and other direct
descendants, as a historical tribe. See Bruette v. Jewell, No. 14-CV-876, 2015 WL 5022591, at *1
(E.D. Wis. Aug. 24, 2015). The court found that Bruette had failed to provide a source of
jurisdiction under which the court could hear Bruette’s claims. Id. at *5 6. Additionally, the court
found that the political question doctrine barred the court from entertaining Bruette’s request seeking
tribal recognition. Id. at *6. Therefore, the court dismissed Bruette’s first attempt for lack of
subject-matter jurisdiction. Id. at *7.
The case is currently before the court on the Secretary’s motion to dismiss. The Secretary
contends that Bruette has failed to state a claim under Fed. R. Civ. P. 12(b)(1) and (6) and moves
to dismiss the claims. Specifically, the Secretary contends that Bruette’s claims are barred by res
judicata and the statute of limitations, and that this court does not have federal subject-matter
jurisdiction over them. For the reasons set forth below, I conclude that, like Bruette’s first case, this
court lacks subject-matter jurisdiction over Bruette’s claims and that his action must be dismissed
in its entirety.
BACKGROUND
Some understanding of the history of the Stockbridge and Munsee Tribe in Wisconsin is
required to understand Bruette’s first lawsuit and current claims. Fortunately, that history has been
recounted in two previous decisions concerning a dispute with the State of Wisconsin over the
boundaries of the Tribe’s reservation in western Shawano County. See Wisconsin v. Stockbridge2

Munsee Community, 366 F. Supp. 2d 698 (E.D. Wis. 2004), aff’d, 554 F.3d 657 (7th Cir. 2009).
A long and detailed version of that history appears in Magistrate Judge Patricia Gorence’s decision
granting the State’s motion for summary judgment, and a more abridged version appears in the
Seventh Circuit’s decision affirming it. The abridged version of the abridged version appears in my
order dismissing Bruette’s first federal case and is sufficient for our purposes here.
I. History of the Stockbridge-Munsee Indians in Wisconsin
The Stockbridge-Munsee Indians are comprised of descendants of the Mohican Tribe who
migrated westward and eventually arrived in Wisconsin in the 1820s. In 1856, the United States
entered into a treaty and created a reservation for the Tribe consisting of two townships (Bartelme
and Red Springs) in Shawano County, Wisconsin, some 40 miles northwest of Green Bay. Treaty
with the Stockbridge and Munsees, Feb. 5, 1856, 11 Stat. 679. In 1871, Congress passed an act
providing for the public sale of most of the land (with the proceeds to be distributed to or held in
trust for tribal members), allotment of the remaining land to tribal members who elected to remain,
and a new enrollment of the Tribe. Act of Feb. 6, 1871, ch. 38, 16 Stat. 404. Those entrusted with
creating the tribal roll, however, excluded more than half the Tribe, including Bruette’s ancestor.
In 1893, in response to reports that the exclusion of many of the tribal members was obtained by
fraud, Congress passed another act in an attempt to restore them to tribal membership. Act of Mar.
3, 1893, ch. 219, 27 Stat. 744. The 1893 Act required the Secretary of Interior to create a new roll
of the Tribe to include all those who were or became members of the Tribe at the time of the Treaty
of 1856 and their descendants who have not separated from the Tribe. The Act also provided that
all members “who entered into possession of lands under the allotments of 1856 and 1871, and who
by themselves or their lawful heirs have resided on said lands continuously since, are hereby declared
3

to be owners of such lands in fee simple, in severalty, and the Government shall issue patents to them
therefor.” Id. In the event of a conflict between the allotments under the 1871 Act and the
allotments of 1856, the 1893 Act provided that the latter shall prevail. Id. at 745.
It soon became apparent, however, that there would not be enough land for those who had
claims under the 1893 Act. This is not surprising since the addition of those previously excluded
increased tribal membership, while at the same time three-quarters of the Tribe’s land had been sold
in 1871. Although the enrollment was apparently completed, the allotment process proved difficult
and was ultimately suspended pursuant to a Senate Resolution. See 1895 Annual Report of the
Commissioner of Indian Affairs, ECF No. 12 25.
In 1900, with the DOI’s approval, the Tribe presented Congress with a proposal to settle all
of the United States’ obligations to the Tribe under the Treaty of 1856, any act of Congress, or
otherwise. The plan called for allotments of the unsold portion of the reservation and of additional
land to be purchased by the United States, or cash in lieu of land. Unlike under previous laws, the
proposed allotments would be alienable. Congress failed to act on the proposal for several years due
to concern about how to fund the measure. See Stockbridge-Munsee Community, 554 F.3d at 661.
Congress ultimately enacted the plan into law in 1906, with funding to come from the Tribe’s
treasury. See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 382 83. Following these allotments,
until the 1930s, the reservation was essentially treated as nonexistent. But in 1937, after the
enactment of the Indian Reorganization Act of 1934, the Stockbridge-Munsee people organized the
“Stockbridge-Munsee Community,” a federally recognized Indian tribe residing on what remains of
its 1856 reservation in Shawano County, where it is still located today.

4

As part of becoming a federally recognized tribe again, the Community passed a constitution
on November 18, 1937. Constitution and By-laws of the Stockbridge-Munsee Community,
Nov. 18, 19373 . Article III of the Community’s constitution defined membership as “all persons
whose names appear on the Stockbridge Allotment Roll of 1910 and who are residing within the
original confines of the Stockbridge Reservation . . . on the date of the adoption of this
Constitution.” Id. It also stated that the “Tribal Council shall have authority to promulgate
ordinances . . . governing the adoption of new members . . . .” Id. In 1940, the tribal council did just
that and promulgated a membership ordinance that declared:
All persons of Stockbridge-Munsee Indian blood whose name appears on the roll of
1871 and any subsequent roll including the roll of 1910, are hereby adopted into
membership of the Stockbridge-Munsee Indian Community. Provided, that any
person whose name appears on the 1871 Stockbridge-Munsee roll or any subsequent
roll up to and including the roll of 1910 of the Stockbridge-Munsee Indians of
Wisconsin, who has relinquished their membership, or their entitlement to
membership, or have been disenrolled for any reason shall not be members of the
Stockbridge-Munsee Community.
Tribal Ordinances, ch. 44.4. This ordinance still governs the Community’s membership requirements
today.
II. Bruette’s First Federal Lawsuit
In 2014, Bruette filed a pro se civil action against Sally Jewell, the Secretary of the United
States Department of Interior. Bruette, 2015 WL 5022591, at *1. Bruette alleged that he was a
direct descendant of Stephen Gardner, who was a party to the Treaty of 1856 and that he still resided
within the original boundaries of that treaty, as had his father, grandmother, great-grandfather, and
Gardner. Id. Therefore, Bruette alleged that he, and the other direct descendants, should be
3

The Stockbridge-Munsee Community’s Constitution and Bylaws are available online at:
http://www.mohican.com/ordinances/.
5

recognized as a historical tribe. Id. Specifically, Bruette asserted three claims in his complaint:
1.

I claim that in 1895 the Department of Interior unlawfully suspended
the Act of Congress, March 3, 1893, under the guise of a senate
resolution. January 31, 1895. “Whereas complaint is made of the
results of the carrying out by the Secretary of the Interior the act of
Congress entitled an act for the relief of the Stockbridge and Munsee
Indians, in the State of Wisconsin, approved March 3rd, 1893.”

2.

I further complain that the Department of Interior has no
legal authority to suspend any act of Congress.

3.

I and all the descendants of Stephen Gardner claim the
Department of Interior is in breach of its fiduciary duties by
failing to establish the official roll of actual members under
the provisions Congress ordered.

Id. at *2. The Secretary responded with a motion to dismiss under under Fed. R. Civ. P. 12(b)(6)
or, alternatively, for summary judgment. Id. at *3. The Secretary argued that the case was moot
because the roll required by the 1893 Act had in fact been taken. Id. Alternatively, the Secretary
argued that the action was barred by the six-year statute of limitations for claims against the
Government under 28 U.S.C. § 2401(a). Id. In response to the motion, Bruette argued that the
Secretary was interpreting his claim too narrowly by focusing on the taking of the roll alone. Id.
Bruette wrote: “The rights I ask the court are the same rights Congress affirmed to my Grandfathers
on March 3, 1893. The right to occupy tribal lands established by treaty, lands held in common with
individual land selections, and to share in pro rata tribal funds.” Id.
Because the exact relief sought was unascertainable, the court scheduled the matter for a
hearing. Id. at *4. At the hearing, Bruette asserted the 1893 Act re-affirmed the rights of Tribe
members under the Treaty of 1856, including himself as a direct descendant, to occupy land and exist
as a tribe. Id. He stated that his ancestor, Stephen Gardner, re-located, settled and improved a piece

6

of land pursuant to the Treaty of 1856; that Gardner had fought in the Civil War from 1862 to 1865;
and that he was ultimately forced off his land pursuant to a patent issued under the 1871 law, which
was obtained by fraud on the Tribe by a political faction of the Tribe. Id. When asked directly what
he wanted the court to do in his case, Bruette said:
We would be granted the rights that our grandfather had that was reaffirmed by
Congress not only in 1893, those rights were reaffirmed in 1906 and 1916, and yet
the Department of Interior has failed to be in compliance with those provisions which
established our sovereignty and jurisdiction as tribes.
We are a tribe. We are the last members of that tribe. But we never took the land.
We never took the money. We have nothing today. Our grandfathers stood outside
in 1871, were being ran off their own reservation. The house that he built he was
being taken and we are still in that same position today because the Department of
Interior failed to be in compliance with those provisions. Those provisions separated
those members who received from the tribe and those members who had never have.
And those who have not received are to maintain their tribal rights, their treaty rights.
Id. at *4. Bruette repeatedly reiterated to the court that he was seeking tribal recognition because
“[i]t would give us an opportunity to raise our family out of poverty. Because the [DOI] failed to
carry out those provisions in 1893 we remained in poverty we were excluded from being a member
of our own tribe.” Id.
After the hearing, both parties were offered the opportunity to supplement their arguments
in favor of or and in opposition to the Secretary’s motion to dismiss. Id. at *5. In her supplemental
brief, the Secretary now construed Bruette’s claims as one for tribal recognition and argued that
there were additional grounds on which her motion to dismiss should be granted: that Bruette’s
claims were barred under the political question doctrine; that the United States is immune from such
suits; and that Plaintiff had not exhausted administrative remedies under the Administrative
Procedures Act. Id. Additionally, the Secretary informed the court that in 2003 Bruette sent the

7

DOI a letter expressing his intent to be recognized as a historical tribe but he had never actually gone
through the administrative process of applying for federal recognition. Id. at *6.
In his own supplement, Bruette did not respond to the Secretary’s new arguments except to
reiterate that the claim was not moot and to note that the rights of Stephen Gardner’s descendants
are based on the Treaty of 1856 and that “[n]o Administrative Law or Procedure can interfere with
those rights.” Id. at *5.
In ruling on the Secretary’s motion to dismiss, the court first addressed whether it had
subject-matter jurisdiction to hear Bruette’s claim and found that it did not. Id. The court explained
that neither party had suggested a basis for jurisdiction and that there was no clear statement by the
United States government waiving its sovereign immunity to suit. Id. The court identified two
possible sources of jurisdiction: the General Allotment Act of 1887, 24 Stat. 388, as amended, 25
U.S.C. § 331 et seq., and the Indian Tucker Act, 28 U.S.C. § 1505. Id. at *5 6. The court found
that neither was applicable to Plaintiff’s claims, and even if they were, the claim would have accrued
too long ago and would be barred by the six-year statute of limitations for “every civil action
commenced against the United States.” Id. at *5 (citing Christensen v. United States, 755 F.2d 705,
707 (9th Cir. 1985)). Additionally, the court found that the political question doctrine barred the
court from reviewing the executive branch’s determination of federally recognized Indian tribes. Id.
at *6. Therefore, the court concluded that it lacked jurisdiction over Bruette’s claims and dismissed
his case. Id. at *7.
Bruette appealed his dismissal for lack of jurisdiction to the United States Court of Appeals
for the Seventh Circuit. Bruette v. Jewell, 638 F. App’x 528, 528 (7th Cir. 2016). The Seventh
Circuit dismissed the case for failure to comply with Fed. R. App. P. 28(a) because Bruette failed
8

to develop an argument to challenge the district court’s decision. Id. Therefore the Seventh Circuit
did not address the merits of the district court’s decision. Id.
III. Bruette’s Current Claims
On February 28, 2017, Bruette filed this pro se civil action against the Secretary and the
Community. ECF No. 1. He alleges that when Congress passed the Indian Reorganization Act in
1934 it did not authorize the Secretary to convey or allocate the rights or property of a historical
Indian tribe that had been established by treaty. Id. at 2. Because of this, Bruette asserts that the
correct historical Stockbirdge-Munsee tribe is the tribe established by article five of the Treaty of
1856, not the Community that was formally recognized by the Secretary in 1937. Id. at 2 3.
Bruette asserts that he, and other direct descendants, are entitled to “hold the same together with
all the rights privileges, immunities, and appurtenance of whatso ever nature” that the Community
is currently asserting. Id. at 3. Bruette asks the court to:
1) Stop the DOI and the Community from conveying or allocating treaty rights or
property in the states of Wisconsin or New York.
2) Eliminate the Community’s 1940 membership ordinance and reaffirm that article
III of the Stockbridge-Munsee constitution governs membership of the tribe.
3) Grant him declaratory, compensatory, and punitive damages.
See id. at 4.
On July 25, 2017, the Secretary filed an amended motion to dismiss4 Bruette’s claims for lack
of subject-matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and for failing to state a claim
upon which relief could be granted, pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 12. The

4

The Secretary filed his original motion to dismiss on May 1, 2017. ECF No. 9. This
motion was denied without prejudice for failing to comply with the court’s local rules. ECF No. 11.
9

Secretary asserts that res judicata prevents Bruette from bringing these claims because they could
have been brought during his original suit. ECF No. 13 at 7 9. The Secretary also asserts that even
if res judiciata did not bar the suit, that the court lacks jurisdiction over Bruette’s claims. Id. at
9 11. Finally, the Secretary asserts that Bruette’s claims are also barred by the six-year statute of
limitations that applies to any civil action filed against the United States. Id. at 11 12.
On August 14, 2017, Bruette filed his response to the Secretary’s motion to dismiss. ECF.
15. In it, he argues that res judicata cannot bar his case because “[t]he central issue is not treaty,
but the legal standing of an Indian Community by the Department of Interior in 1937, organized
without regard to past Tribal Affiliation.” Id. at 1 (emphasis added). Therefore, Bruette’s primary
purpose for litigation appears to be to have himself, and other direct descendants, declared the
correct historical tribe and to have the Community repudiated as a historical tribe. Breutte also
argues that his motion was within the statute of limitations because the discovery date for his 2014
case was August 24, 2015. Id. As to the court’s jurisdiction, Bruette offers only that “Federal
question jurisdiction powers the court jurisdiction.” Id.
On August 25, 2017, the Secretary filed his reply to Bruette’s response. ECF No. 16. The
Secretary asserts that the issue of the Community’s legal standing is barred by res judicata because
Bruette could have brought this claim in his first case. Id. at 2. Additionally, the Secretary argues
that Bruette offers no explanation for why the discovery deadline date is pertinent or why he failed
to bring this suit for decades after its accrual. Id. at 2. Lastly, the Secretary highlights that Bruette
still has failed to offer a source of jurisdiction for the court to hear his claims.

10

ANALYSIS
I. Jurisdiction
The threshold issue the court must address is whether it has jurisdiction over the claim
Bruette has asserted. Federal courts are courts of limited jurisdiction, which means they can only
hear and decide the kinds of cases that the Constitution and Congress authorize them to hear.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This court’s original
jurisdiction extends to cases that “arise under” federal law, of course, but the plaintiff in such a case
must also identify some statute creating a federal cause of action. Int’l Union of Operating Eng’rs
v. Ward, 563 F.3d 276, 281 (7th Cir. 2009) (“[W]hen the basis of the action is a federal statute, a
federal cause of action must exist as well for a federal court to hear a given claim; the general grant
of federal question jurisdiction contained in [28 U.S.C. § 1331], without a federal cause of action,
is not enough.”). Additionally, “[j]urisdiction over any suit against the Government requires a clear
statement from the United States waiving sovereign immunity, together with a claim falling within
the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)
(citations omitted).
Like his first case, Bruette again fails to offer a source of jurisdiction for the court to hear
his claims. The Secretary identifies two possible sources of jurisdiction and argues that neither
applies: the Little Tucker Act and the Administrative Procedures Act (“APA”). The Little Tucker
Act, 28 U.S.C. § 1346(a), states that a district court shall have original jurisdiction over civil actions
under $10,000 against the United States that are found upon the Constitution, any act of Congress,
or any regulation of an executive department. However, the Little Tucker Act is a jurisdictional
statute, which “does not create any substantive right enforceable against the United States for money
11

damages.” United States v. Testan, 424 U.S. 392, 399 (1976) (interpreting the parallel language of
the Tucker Act, 28 U.S.C. § 1491); see also Kipperman v. McCone, 422 F. Supp. 860, 868 (N.D.
Cal. 1976) (finding that the Supreme Court’s interpretation of the Tucker Act controlled the court’s
interpretation of the Little Tucker Act). Therefore, the Little Tucker Act alone does not waive the
United State’s sovereign immunity. Rather, in order to proceed under the Little Tucker Act, Bruette
must identify a statute creating his substantive right to money damages. He has not done so.
Additionally, the APA is inapplicable to establish jurisdiction over Bruette’s claims. The
APA provides a conditional, limited waiver of sovereign immunity. 5 U.S.C. § 702. Section 702
provides that a “person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review
thereof.” Id. However, in order for the APA to apply, Bruette must allege a legal wrong caused by
an agency action. The only actions that Bruette challenges are 1) the Community’s 1940
membership ordinance and 2) the recognition of the Community as a historical legal tribe. The
Community’s 1940 membership ordinance is not an action by a federal agency subject to review
under the APA. Furthermore, as discussed in greater detail below, the Community’s 1940
membership ordinance is not subject to judicial review.
The only other action Bruette alleges is the recognition of the Community as a historical
tribe. However, even construing the Community’s federal tribal recognition as action by the DOI,
Bruette’s APA claim must fail. First, as described in further detail below, tribal recognition is a
political question that falls beyond the review of the courts. Second, the Secretary recognized the
Community as a federally recognized tribe in 1937; therefore, Bruette’s claim is barred by the sixyear statute of limitations on claims against the United States. 28 U.S.C. § 2401(a); see Solid Waste
12

Agency, Inc. v. U.S. Army Corps of Eng’rs, 191 F.3d 845, 853 (7th Cir. 1999) (“There is a general
six-year statute of limitations for civil actions against the United States found in 28 U.S.C. § 2401(a),
which applies to lawsuits brought pursuant to the APA.”) (citations omitted). Bruette has offered
no argument for why the six-year statute of limitations should not bar his claim which arose decades
ago when the Secretary recognized the Community in 1937 and was acknowledge by Bruette at least
as early as 2003 when he expressed a desire to be federally recognized as a tribe to the DOI.5
II. Tribal Recognition and Repudiation
To the extent that Bruette seeks tribal recognition of himself and his relatives as a historical
tribe, or the repudiation of the Community as a historical tribe, this court has no authority to grant
such relief. It has been long established that “questions whether, to what extent, and for what time
they shall be recognized and dealt with as dependent tribes . . . are to be determined by Congress,
and not the courts.” United States v. Sandoval, 231 U.S. 28, 46 (1913). As explained in Miami
Nation of Indians v. United States Department of Interior, the criteria for federal recognition are
set forth in regulations promulgated by the executive branch of government under powers delegated
to it by Congress. 255 F.3d 342, 345 46 (7th Cir. 2001); see 25 U.S.C. §§ 2, 9; 25 C.F.R.
§ 83.7(a) (g). What’s more, as the Seventh Circuit explained in Miami Nation, federal recognition
“lies at the heart of the doctrine of ‘political questions.’” 255 F.3d at 347. As it relates here, this
doctrine “identifies a class of questions that . . . [is] not amenable to judicial resolution because the
relevant considerations are beyond the courts’ capacity to gather and weigh . . . .” Id. This means

5

Because I have determined that this court does not have jurisdiction over Bruette’s claims
against the United State, I need not address the Secretary’s remaining res judicata argument.
13

that it is not appropriate for this court to review the executive branch’s determination as to who is,
or is not, a historically recognized tribe.
III. The Community’s Sovereign Immunity to Suit
To the extent that Bruette seeks to bring suit against the Community, his claims are barred
by the doctrine of sovereign immunity. “As a matter of federal law, an Indian tribe is subject to suit
only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of
Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (citations omitted); see also Okla. Tax Comm’n
v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Suits against Indian
tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional
abrogation.”). Therefore, the court’s jurisdiction to entertain cases against the Community is defined
by Congress or the Community’s consent. United States v. Sherwood, 312 U.S. 584 (1941)
(explaining that sovereign immunity “and the terms of [an immune party’s] consent to be sued in any
court define that court’s jurisdiction to entertain the suit”). Plaintiff has not identified a waiver of
the Community’s sovereign immunity. Because the court’s jurisdiction over the Community is
dependent on its consent, the court cannot take the Community’s inaction as a waiver; rather, the
court must raise the issue of jurisdiction and sovereign immunity sua sponte. Willis v. United States,
600 F. Supp. 1407, 1411 (N.D. Ill. 1985); see also Pit River Home & Agric. Coop. Ass’n v. United
States, 30 F.3d 1088, 1100 (9th Cir. 1994) (“[T]he [tribe’s] failure to appear specially does not
waive its sovereign immunity, since sovereign immunity is a jurisdictional defect that may be asserted
by the parties at any time or by the court sua sponte.”) (citation omitted).
Additionally, the court is required to address the Community’s sovereign immunity pursuant
to 28 U.S.C. § 1915(e). On March 1, 2017, the court granted Bruette’s motion to proceed in forma
14

pauperis. ECF No. 3. Section 1915(e) requires that for cases proceeding in forma paueperis, “the
court shall dismiss the case at any time if the court determines that . . . the action . . . seeks monetary
relief against a defendant who is immune from such relief.” See Jones v. Bock, 549 U.S. 199, 215
(2007) (explaining that in the Prison Litigation Reform Act “Congress added failure to state a claim
and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte
dismissal of in forma pauperis cases. ”); see, e.g., Wemple v. All Ill. Judicial Cirs., 778 F. Supp. 2d
930, 933 (C.D. Ill. 2011) (finding that sovereign immunity required the case to be dismissed under
28 U.S.C. § 1915(e)(2)(B)(iii)).
Therefore, Plaintiff’s claims, which arise from and pertain to how the Community defines its
members, are barred by the doctrine of sovereign immunity. Congress has explicitly provided tribes
with the power to define their tribal membership in their constitutions and bylaws and to amend
them, if necessary. 25 U.S.C. § 5123.6 Plaintiff has not identified a statute where Congress
abrogates those rights. Furthermore, courts have explained that “[a] tribe’s right to define its own
membership for tribal purposes has long been recognized as central to its existence as an independent
political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978) (citations
omitted). Therefore, the court does not have jurisdiction over conflicts arising with how the
Community defines its membership, whether it be by its constitution or its 1940 membership
ordinance.

6

Section 5123 does require the Secretary of the Interior to approve a tribe’s constitution,
bylaws, and amendments. Both the Community’s constitution and its 1940 membership ordinance
were approved by the DOI. See Constitution and By-laws of the Stockbridge-Munsee Community,
Nov. 18, 1937 and Tribal Ordinances, ch. 44.4.
15

CONCLUSION
For all these reasons, I conclude that this court lacks subject-matter jurisdiction over
Bruette’s claims against both the United States and the Stockbridge-Munsee Community. The
Secretary’s motion to dismiss (ECF No. 25) is GRANTED. The action is DISMISSED. The Clerk
of Court is direct to enter judgment accordingly.
Dated this 20th day of September, 2017.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

16